A large construction case is a complex beast. Many issues. Many parties. Lots of money at stake. Taking such a matter to trial requires skill, experience, and a trial team with depth. It requires lawyers who know how to present a case to a jury when necessary and legal assistants who can prepare that case for trial. It needs support staff who can provide document services, run computer programs to organize evidence, and do online research. Hundreds, sometimes thousands, of hours of time and a career’s worth of experience go into a successful trial.
What counts as successful? In a complex construction case it is a recovery that justifies all of the time and dollars invested. But a good case can often meet that objective without a trial. Today, mediators are skilled at resolving construction cases and probably 80% will settle without the necessity of a trial. As a consequence, few matters ever actually see the inside of a courtroom, and even fewer attorneys can claim to have selected a jury, much less obtained a successful verdict. But so what? Isn’t it a good thing to mediate a case to resolution without the time and risk of a trial?
Certainly. But what helps to resolve cases without trial is the certainty that if the matter doesn’t settle there will be a trial with a jury waiting to render a verdict and an experienced trial lawyer who will present the case to that jury. For the 20% of the cases that do not settle in mediation, an attorney will have to prepare for trial and present the case to the trier of fact—a jury or a judge. And every litigator is not necessarily a trial lawyer. There are many attorneys and law firms who file complaints, do discovery, and can settle a matter with the help of a good mediator, but not all litigators have experienced an actual trial of a complex construction case. A law firm which does not have attorneys with trial experience or partners who can claim to have taken cases to verdict will not present the opposition with a credible trial threat and will not obtain the most successful results in settlement.
Randolph Paul is one of the senior partners at Berding|Weil who can make that claim. He is a member of the American Board of Trial Advocates, an organization that recognizes only those attorneys who have tried cases to verdict. We asked Mr. Paul several questions about trial experience.
Alert: “Why is it important for a firm to have trial experience?”
Paul: “First, in today's construction defect litigation world, it is essential to have the expertise needed to try cases to maximize the recovery for cases that should settle. The defense will always exploit what they perceive as a weakness in the ability of their adversary. If they think you will not try the case, they will not offer full value even on cases that should settle. Secondly, some cases have issues that force them to trial, and the inability to effectively try a case will cripple the client's ability to achieve full compensation.”
Alert: "With all of the emphasis on mediation, why does a case end up in trial these days?"
Paul: “The complexity of insurance issues and the inability or unwillingness of insurance carriers to address cases seriously at an early juncture is one of the primary reasons. In a given case, there may be dozens of insurers involved, and it only takes a small fraction to cause the case to stall from a settlement perspective. Another factor is the legal complexity of the case. Often there are legal defenses or factual issues that embolden one or more defendants and cause them to take a tougher stance. The only way of showing them the error of their analysis is to take the issue to a judge and ultimately to a jury.”
Alert: "What do you consider the most important trial skill?"
Paul: “It is essential in a construction case to be able to present a complex set of facts in a way that is engaging and interesting to a jury. What may on the surface be a dry subject can and should be made into a story that draws jurors in and allows them to understand the plight facing the owners of the property that is in distress. It is essential that the attorney, working with the experts and others who will testify, present the case in a way that is compelling and draws the jury into the process.”
Alert: "Which have been your most important trials?"
Paul: “The Buck Center Landslide case in Marin County ($5,500,000) affected a large number of people, including our thirteen clients, some of whose homes were completely destroyed. It was a long, complex trial, but one which allowed our clients to recover fully from what was a devastating initial loss. In addition, a repair of the landslide was performed as settlement of a related case handled by us.
University Lofts of Berkeley ($2,700,000) suffered a host of problems with water intrusion and was particularly gratifying, considering the needs of the owners, many of whom were suffering from disabilities which made their plight even more compelling.
The Rancho Solano jury verdict ($5,840,000) was one which helped over a thousand homeowners and achieved a result that allowed them to repair eleven separate landslides that threatened many homes. That matter, which I tried in tandem with Tyler Berding, took about twelve weeks to present and required convincing the jury with a story told using complex geotechnical expert testimony.
Ocean Harbor House ($7,000,000) involved the need for a Homeowners Association to build a seawall to ensure protection for their homes. The result, obtained only after trial started (nothing was offered before trial,) enabled them to construct the needed protection for their homes.
Extensive trial preparation of the case involving a major coastal resort resulted in a recovery in excess of $180,000,000 for the owners to rebuild the project into what it should have been from the start. This trial required more than just construction experience. It also required an understanding of the unique economic damages that commercial properties can suffer when construction defects threaten to shut down their operations.
The common thread is that in each of these cases, had the trial threat not been real, the result to the client would have been severely compromised. Once trial commenced, the defendants were compelled to evaluate the case in a manner not done previously.”
A complex construction case not only involves experience in the preparation and presentation of evidence in accordance with the rules of evidence, it also requires knowledge of technical construction issues. Construction cases rely upon expert witnesses in many different disciplines--architects, and engineers specialized in structures, soils, acoustics, and mechanics as well as contractors and cost estimators. Presenting their story requires experience in cases which have litigated claims in those disciplines. An attorney who lacks this experience and background will not be able to elicit expert testimony which makes sense to the court or to the jury.
“When we tried the Rancho Solano case, we were faced with a claim which involved eleven different major landslides, some of which had already failed and some of which had not yet caused damage,” said Berding|Weil senior partner, Tyler Berding. “Each landslide had a slightly different geologic makeup and each posed a different degree of threat to the surrounding homes. The slides which had already failed were a clear threat, but the dormant slides, those that had not yet failed, required the presentation of evidence sufficient to convince the jury that they posed a credible threat to our clients’ homes. The technical nature of the testimony required that we spend many hours of careful preparation with our expert witnesses to be able to present the case in a manner that would be understood and appreciated by the laypeople on the jury.”
“The manner and cost of repairing each slide also had to be shown in a way that convinced the jury that our client’s proposed repairs, rather than the more limited scope of repair presented by the developer, were the most credible. Again, this required working with complex and technical soil design and cost evidence that was unique to each landslide,” said Berding. “None of this could have been done without relying on the significant geotechnical experience garnered by our firm in similar cases.”
Berding|Weil senior partner Scott Barton obtained a $2.4 million jury verdict last year in a complex construction case in Las Vegas. We asked Scott to tell us how a firm’s trial experience is beneficial to its clients.
Alert: "Does trial experience make it easier to settle a case?"
Barton: “Yes, real trial experience makes it easier to get a good settlement for our clients. Anyone can settle a case, but the firm with trial experience has an advantage. While we are willing to recommend settlement, if the opposing party does not present our client with a fair offer we are always ready, willing and able to take the case to trial.”
Alert: "What is the most important skill needed to present a case to a jury?"
Barton: “Clear and concise organization and presentation of the evidence essential to your case is the key to success in a jury trial.”
Alert: “How does your trial experience help you with your other cases?”
Windust: “It helps to advise clients on how a court might view certain evidence. In the trial court, certain issues and facts that seem minor take on greater significance. Trial experience also helps greatly in settling cases. With the credibility to actually take the case to trial, the opposing party is forced to critically assess its own case, see its potential weaknesses, and understand the risks it faces. Our ability to present those weaknesses to a judge or jury forces the opposing party to make a more serious effort at settlement.
We are also able to tell our clients how a judge or jury will view the evidence from experience rather than conjecture. This helps the client to understand its chances of success at trial and to determine whether it wants to attempt settlement before trial. Trial experience also helps us to litigate the case more efficiently by focusing our efforts on discovering and presenting evidence that will matter to a judge or jury and, hopefully, increase our chance of prevailing in the case.”
Alert: “What was your best trial result?”
Windust: “We recently obtained a 12-0 jury verdict in Santa Clara Superior Court. The jury found the defendants liable for intentional fraud in the sale of a large apartment complex. The Jury awarded our client damages in the sum of $2.5 million plus attorneys' fees and costs.”
Andy Baugh, a former U.S. Army prosecutor who assisted Paul Windust with the trial that resulted in the verdict above, told us how his trial experience has helped him prepare:
Alert: "What trial skill do you think most contributed to the verdict in your recent case?"
Baugh: “I believe my experience dealing with evidentiary rules was very helpful to our team. When I was an Army JAG prosecutor, I had the opportunity to do a large number of criminal trials that allowed me to practice the rules of evidence. Knowing those evidentiary rules allowed us to get physical items admitted into evidence over heavy objection and enabled us to prevent the defense for entering a number of prejudicial pieces of evidence against our client at trial.”
Berding|Weil senior litigation partner Dan Rottinghaus says that his most important trial actually involved three separate claims where the outcome of each rested on the result of the initial trial. “Our client's building was a large, fully-occupied high-rise commercial building in downtown San Francisco. An adjacent brick building caught fire and smoke from the fire was drawn into our client's building through a defect in the exterior wall damaging the office equipment of a number of tenants. The owner of the building next door was sued for negligence in allowing a fire to escape their building.
Our client's fire insurance carrier denied the claim, so we also sued the carrier for bad faith. The building’s contractor was sued for the defect in the exterior wall. The cases were not consolidated. The first one to go to trial was the case against the adjacent building’s owner. We were able to demonstrate at trial, using some very old photographs, that bricks were missing from the adjacent building's exterior wall. This trial resulted in a favorable jury verdict for our client. This verdict allowed us to settle both the construction defect and the insurance claims. Had the trial not occurred, it is doubtful that we could have settled the remaining claims.”
Alert: "Do you think that being willing to try the case resulted in a better recovery?"
Rottinghaus: “In my mind, the best recovery can only be achieved when you prepare the case and are willing to take it to trial. That doesn't mean the best recovery always comes from a trial, but if you aren't prepared to try the case you are advocating, the defense will know it and factor in a big discount for any settlement.”
Alert: "What trial skills do you believe are most important?"
Rottinghaus: “Communication in a focused manner directly with the jury about the strengths and weaknesses in the case is the trial skill most important to an effective result. In discussing the strengths of the case, you provide the jury with what they need in order to make a decision in favor of your client. In acknowledging the weaknesses with the case, you build the credibility with the jury that is necessary for them to see why your strengths outweigh those weaknesses. “
An impending trial has a sobering effect on decision makers. As the trial date approaches and preparations for trial are undertaken, the pressure increases on the parties to settle the case. The good trial lawyer recognizes this. Jonathan Margolis, the late and highly respected California mediator stated that “an imminent trial date hugely influences the mediation process. In fact, it is probably the single biggest factor that aides a mediator in settling a case. The cost, risks and uncertainty associated with a trial, as well as clients’ worries about the amount of time that they will have to spend in court, are issues that almost always are significant enough to drive a case to settlement.” He ranked an attorney’s trial readiness as an important factor in reaching the best result for his client: “An attorney’s overall reputation, as well as his reputation for ability and willingness to try a case, is also important in the settlement process. This applies not only just before trial, but throughout the case.”
We think of trial lawyers as being in court most of the time. The truth is, in the complex construction litigation world, trials occur rarely, and attorneys who have big case trial experience are rarer still. Lawyers who lack trial experience may also lack the confidence to push a case to the edge, and it is often only at the edge that the best settlements are achieved. Berding|Weil attorneys will take cases to trial when necessary, a fact not lost on the opposition. And while a good mediated settlement is always preferable to the risk of trial, the fact that attorneys are experienced and comfortable in trial means that they are more likely to stay out of trial and will obtain better results than those attorneys for who a courtroom is unfamiliar territory. Berding|Weil considers itself fortunate to have so much trial experience concentrated in one firm. Clients who are shopping for lawyers to bring a complex claim on their behalf should always ask a prospective firm this simple question: “What is your trial experience?”
There are other questions to ask as well. How big is the firm? Has your firm taken cases all the way to verdict? How many cases have you handled in this county’s court? How deep is the support staff in case the workload gets heavy with document production or multiple site inspections? How many attorneys are available to work on the matter if a flurry of opposition motions are filed, a score of depositions noticed, or if the case has to be prepared for trial? Are you the firm that will manage and try the case, or will you broker the case to another law firm? Which attorney will we see on a day to day basis? Finally, whether it is Berding|Weil or another firm, don’t let the first law firm you speak with be the last. Interview several firms and ask them all of the questions above.
A complex construction defect case may be the most important matter a client ever undertakes and how well it is handled could be the difference between economic survival and disaster. Ask the right questions. Interview several firms. Determine their level of trial experience. Remember, a case can certainly settle without a trial, but by choosing a firm with acknowledged trial experience you will insure not only the best possible settlement, you will also put that experience in your corner if your case is one of the 20% that does not resolve in mediation.
